Australian Workplace Safety Standards Bill 2005

Bills Digest no. 37 2005–06

Australian Workplace Safety Standards Bill2005

WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.

Commencement: The operative provisions of the
National Occupational Health and Safety Commission (Repeal,
Consequential and Transitional Provisions) Bill 2005 will commence
on a single day fixed by proclamation or on the day after a period
of six months, whichever is first. The Australian Workplace Safety
Standards Bill 2005 will commence at the same time as the National
Occupational Health and Safety Commission (Repeal, Consequential
and Transitional Provisions) Bill 2005.

The National Occupational Health
and Safety Commission (Repeal, Consequential and Transitional
Provisions) Bill 2005 (the NOHSC Bill) will abolish the National
Occupational Health and Safety Commission (the NOHSC).

The Australian Workplace Safety Standards Bill 2005 (the AWSS
Bill) will provide a framework for the declaring of occupational
health and safety standards through the Australian Safety and
Compensation Counsel. However, the AWSS Bill will not provide for
the establishment or setting up of the Australian Safety and
Compensation Council this body and all its functions and powers
will be established administratively.

The NOHSC was established on 11 October 1984 on a non-statutory
basis, and in the following year, established under section 6 of
the National Occupational Health and Safety Commission Act
1985 (NOHSC Act). The Government proposes to replace
NOHSC with the Australian Safety and Compensation Council
(ASCC).

A background to the adoption of Commonwealth Occupational Health
and Safety (OHS) law and the NOHSC has been provided earlier in the
Parliamentary Library Bills
Digest: No. 112, 2000-01 on the Occupational Health and
Safety (Commonwealth Employment) Amendment Bill
2000.(1) There, it was reported that Federal, State
and Territory OHS legislation were originally derived from the
Factory Acts and Shop Acts imported from Britain toward the end of
last century.(2)

However, Australian OHS law was revolutionised in the 1970s
following a United Kingdom Parliamentary Inquiry on health and
safety at work. The inquiry was commissioned following perceptions
of poor safety practices and record keeping in key British
industries. The Report of the Committee of Inquiry on Occupational
Health and Safety in 1972 came to be known as the Robens
Committee Report.(3)

Legislation adopting its recommendations was
passed in the United Kingdom in 1974. Australian States followed
the legislative trend in the 1980s.(4) The Robens
Committee Report observed that the infrequency and often long
latency of workplace injuries meant that individuals did
not havesufficient personal experience of
injuries (emphasis added) to prompt a significant
awareness of occupational health and safety. It concluded that:

if individual experience is not in the normal
course conducive to safety awareness, then safety awareness must be
deliberately fostered by as many specific methods as can be
devised.(5)

What distinguishes the Robens Committee's approach is
the role of self-regulation of safety in the varied enterprises
across industries. The problem of health and safety, it said:

could not be overcome so long as people were
encouraged to think that safety and health at work could be ensured
by an ever expanding body of legal regulations enforced by an ever
increasing army of inspectors.(6)

It concluded that occupational health and safety
could be realised if government, management and employees were
jointly responsible.

Underpinning self-regulation was statutory
recognition of joint consultative practices as the basis of the new
approach:

Commitment of all employees: employees
must be able to participate fully in the making and monitoring of
arrangements for safety and health at work. There should be a
statutory duty on every employer to consult with his employees or
their representatives at the workplace on measures for promoting
safety and health at work, and to provide arrangements for the
participation of employees in the development of such
measures.(7)

It is important to note that freedom of association principles
were the cornerstone of the Robens Committee's approach,
recognising, as it did, the unique role of the representatives of
employees (unions) and, whereas individual employees may not have
had personal experience of health and safety adversity, collective
organisations acquired what now may be called corporate knowledge
of OHS issues, particularly those specific to an industry.
Following the enunciation of the principles of joint consultation,
and recognising the diversity of work practices and procedures, the
formulation of a systems approach to managing safety in a
particular enterprise became the norm.

At the federal level, the establishment of NOHSC in 1984
reflected many of the approaches which had been gaining momentum
since the 1970s. In his Ministerial Statement of 11 October 1984,
the Hon Ralph Willis set out objectives and a framework of
operation for the NOHSC as part of federal-state OHS
machinery.(8) The key parts of the NOHSC strategy
were:

to reduce the unacceptably high national record of occupational
death, injury and illness. At that time, on average, every working
day in Australia there was one occupational fatality. Industrial
accidents leading to lost time injuries occur 600 times a day
throughout the nation

the improvement of working conditions as a basic objective of
the prices and incomes accord. At the heart of this commitment was
the Government's belief that all workers have the right to a safe
and healthy working environment

as part of the object that all Australians work in a safe and
healthy environment and to encourage work involvement and job
satisfaction, the Government proposed to subsidise selected
organisations introducing industrial democracy practices

OHS improvements in occupational health and safety would come
about through active participation of workers and their
representatives in decisions about their health and safety, whether
those decisions are made at the work place, State or Federal
government level and based on the principles of participation and
acceptance of appropriate responsibility. Consultation and
co-operation-with State and Territory governments, the trade
unions, employers and their organisations, occupational health and
safety specialists and community groups was a feature

the role of the Commonwealth was primarily one of co-ordination
and facilitation. The major jurisdiction over occupational health
and safety lies with the States. State and Commonwealth governments
have clear and distinctive roles and responsibilities. The
establishment of NOHSC did not transfer responsibilities, but
resulted in additional, beneficial activities. The Commonwealth
undertook standards development, research, training and information
collection and dissemination, arguably more efficiently and
effectively done at a national level. The proposals represented a
positive initiative in co-operative federalism

of top priority for the new Commission was the development of
uniform legislative approaches in occupational health and safety
and the development of national standards. Some of the earliest
national standards determined by the NOHSC related to the code for
manual handling and concerning the safe handling (and removal) of
asbestos. The initial budget allocated to the NOSH strategy was $12
million, and

The national chemicals notification and assessment scheme, which
provides a mechanism for evaluating new chemicals before they enter
the Australian market, and for the assessment of existing chemicals
was to become a responsibility of NOHSC, although this
responsibility has since been devolved. The devolution was a result
of the recommendations taken from reviews in the mid
1990s.(9)

The direction of the NOHSC was changed significantly in May
1997. The Labour Ministers Council (LMC) (as it then was)
charged the NOHSC with developing current OHS issues for business,
particularly for small business. Less attention was to be devoted
to the development of nationally consistent OHS standards. A press
release following the May 1997 meeting of LMC, authorised under the
Hon Peter Reith, stated that:

The Council considered and agreed to proposals for
the future directions of the National Occupational Health and
Safety Commission (NOHSC) as developed by its Chairman in
consultation with all jurisdictions and NOHSC. As the source of
strategic direction to national efforts in OHS reform. NOHSC will
identify significant current and emerging OHS problems and provide
practical solutions for workplaces, with recognition of the needs
of small business.

There will be less emphasis on the development
and/or promulgation of national OHS standards and codes developed
by NOHSC. The prior agreement of the LMC as the peak OHS policy
body will be sought before any further national standards or codes
of practice are developed. Where new standards or codes are
supported, they will be consistent with the overall objectives of
regulatory reform.

The Council agreed to support the implementation
of a national comparative performance monitoring system of OHS
jurisdictions under the auspices of NOHSC. This will focus on
outcomes and be used in conjunction with performance monitoring of
workers' compensation schemes to enable jurisdictions to better
target claims.

Under the new NOHSC directions, there will be an
annual report from NOHSC to the Council on NOHSC's activities and
achievements incorporating a comprehensive report on national
consistency and performance.

The Council recognised that its endorsement of the
future directions for NOHSC provides a continuing response to a
number of recommendations of the Industry Commission's 1995 Report
on OHS (Work, Health and Safety) will assist the States
and Territories in their further consideration of those
recommendations which fall within their responsibility

The national OHS reform agenda agreed to by
Ministers will assist small business and address the concerns set
out in the Small Business Deregulation Task Force
Report.(10)

As a consequence of this new strategic direction, the Australian
Council of Trade Unions (ACTU) claimed that no new national OHS
standards were made for the building and construction industry
between 1997 and 2003, by which time a report of the Royal
Commission into the Building and Construction Industry had welcomed
the intention to resume standards setting. Importantly, there was
agreement that NOHSC would undertake development for a national
standard for construction and codes of practice for prevention of
falls and for demolition work. The February 2003 report of the
Royal Commission recommended that the Commonwealth take steps to
ensure that:

(a) drawing up and giving effect to uniform
national standards in the building and construction industry is a
priority under the National Priority Action Plans of the National
OHS Strategy; and

(b) the [Workplace Relations Ministers
Council], its members and NOHSC adopt a timetable and be
accountable for the progress and completion of this
work.(11)

NOHSC also assisted in the compilation of data to enable the
comparisons made of the claims and costs of the State and Territory
workers compensation schemes.(12) On 24 May 2002, the
Workplace Relations Ministers Council (WRMC) (formerly
LMC) endorsed a National OHS Strategy
2002-2012.(13) The Ministers indicated that:

The OHS Strategy is significant in that, for the
first time, Australia will have all (Cwth and State) jurisdictions,
and the peak employer and employee organisations (ACCI and ACTU)
committed to minimum national targets and national priorities for
improving OHS. Ministers agreed that the OHS Strategy operate for
ten years and be monitored by the Council. (14)

The National OHS Strategy 2002-2012 outlines
initial national OHS targets, which are to:

sustain a significant, continual reduction in the incidence of
work-related fatalities with a reduction of at least 20 per cent by
30 June 2012 (and with a reduction of 10 per cent being achieved by
30 June 2007); and

reduce the incidence of workplace injury by at least 40 per cent
by 30 June 2012 (with a reduction of 20 per cent being achieved by
30 June 2007).(15)

Finally, in March 2004, Australia ratified the International
Labor Organisation Convention No. 155 (Occupational Health and
Safety 1981). This requires a national health and safety policy to
be implemented in consultation with representatives of employers
and workers.

The Hon Kevin Andrews announced the establishment of the
Australian Safety and Compensation Council on 18 May 2004 at
WRMC.(16) The key rationales for the ASCC include:

the new body will comprise representatives from each State and
Territory government, as well as the Commonwealth Government, along
with employer and employee representatives

the ASCC will establish a national approach to workplace safety
and workers compensation which currently does not exist in
Australia. There is currently no national body for workers
compensation in Australia. This means there is no consistency to
workers compensation, nor is there a national approach. Workers
compensation is a complex system which employers and employees
struggle to understand, and

the ASCC s main role will be to coordinate research and provide
policy advice to the WRMC which comprises the Federal Workplace
Relations Minister and his State and Territory counterparts.

In addition, the Minister argued that the

ASCC will be a forum for better national discussion and
coordination while respecting States jurisdictions over workplace
safety and workers compensation, and

Australian Government will maintain its current funding for this
body.(17)

In a subsequent press release, the Hon Kevin Andrews advised
that the Government would propose a number of strategies to
revitalise the national consultative framework in its response to
the Productivity Commission s (PC) (then imminent) final report
into national OHS and workers compensation arrangements. He
announced that:

in anticipation of the PC final report s release, the Australian
Government proposed the establishment of the ASCC. The ASCC will
achieve better workplace health and safety for employers and
employees. For the first time, workers compensation issues will be
discussed in a national forum

the ASCC will build on the achievements of NOHSC in pursuing a
national approach to OHS and workers compensation issues. It is
important to stress that all of the important work currently
undertaken by NOHSC will continue

the ASCC will be a tripartite body, but with a broader
consultation base than the current NOHSC arrangements, with
representatives from federal, state and territory governments,
along with employer and employee representatives, and

until the ASCC is established, NOHSC will continue to lead
national efforts to improve Australia s OHS performance, working to
achieve workplaces that are free from death, injury and disease.
The Australian Government is consulting State and Territory
Governments and employer and employee representatives about the new
national arrangements.(18)

replacing the NOHSC with a smaller body appointed on
basis of skills and expertise

requiring all jurisdictions to adopt uniform OHS
regulations

sharing funding of NOHSC between the Government and the
States

developing an alternative workers' compensation scheme to
operate in parallel with existing State schemes (as proposed under
steps 2 and 3 of the Commission's model); and

establishing, by legislation, a workers' compensation body to
develop nationally consistent scheme elements.(19)
However, this approach also suggests that it appears that the
Government plans to leave OHS and workers compensation matters to
the States.

Other key issues for the newly formed ASCC will be:

the increasing use of labour hire arrangements which
essentially act to vitiate the joint consultative Robens
approach to OHS planning and resolution as the host employer need
not assume direct responsibility for people who are not his/her
employees,(20) and

access by corporations to the Commonwealth scheme of workers
compensation; or, to allow such companies to self-insure under the
Commonwealth scheme to the financial detriment of State
workcover schemes as well as countering industrial
manslaughter laws.(21)

At the time of the release of the Government s intention to
replace NOHSC with the ASCC, the ACTU argued that:

The ASCC would not have legislated powers and
responsibilities, unlike NOHSC. It would be restricted to a
toothless advisory role. Its structure would be at the whim of the
Commonwealth Government. It would advise on workers compensation as
well as health and safety A recent study by Access Economics
estimates that there are 4,900 work-related deaths each year in
Australia. The Australian Bureau of Statistics reports that half a
million Australians suffer work-related injuries or illnesses each
year There is an urgent need for development and review of national
standards and codes of practice in Australia. The NOHSC Act is the
only legislative basis for those standards and codes of
practice.(22)

The Government reacted to this criticism, agreeing to introduce
legislation setting out the declaration of national standards and
codes as a statutorily entrenched function of the ASCC. The
Explanatory Memorandum to the Australian Workplace Safety Standards
Bill 2005 states that the Government intends that the ASCC to be
tripartite (presumably on invitation of the Minister) but will have
power to declare OHS standards, noting that:

The purpose of the Bill is to provide for the
declaring of national standards and codes of practice relating to
occupational health and safety (OHS) matters by the Australian
Safety and Compensation Council (ASCC). The Bill does not prevent
additional functions being conferred on the ASCC
administratively.

The ASCC will be a body established under the
executive power of the Commonwealth to provide policy advice to the
Workplace Relations Ministers Council on national OHS and workers'
compensation arrangements in order to achieve national regulatory
frameworks National standards and codes of practice declared by the
ASCC, like those that have been declared by NOHSC, will be advisory
only, requiring separate legislative action by Commonwealth, State
and Territory governments to implement the standards and codes
within their jurisdiction.(23)

NOHSC staff were transferred to the Department of Employment and
Workplace Relations (DEWR) in February 2005, and DEWR assumed part
of the NOHSC budget. In short, DEWR is accruing regulatory
functions.

Schedule 1, Part 1, item 1 of the NOHSC Bill
will repeal the NOHSC Act.

The remaining provisions of the NOHSC Bill are transitional and
savings provisions which will allow the transition from a statute
based body to the administrative body that the ASCC will be.

Under Part 2, item 3, any assets which were
vested in the NOHSC will be, by operation of proposed new
subsection 3(a), vested in the Commonwealth. The transfer
of those assets, as well as the transfer of any liability incurred
by the ASCC, will be excluded from any tax imposed under federal,
state or territory legislation by virtue of proposed new
section 6. The final financial status of the NOHSC will
have to be assessed under proposed new section 9
not later than 90 days after the Council s abolition and certain
reports and financial statements as specified in this section must
be given to the Minister

The Commonwealth will become the legal successor to the NOHSC.
For example, under item 5, in legal proceedings to
which the NOHSC was a party prior to the day its abolition, the
Commonwealth will have to be substituted as the then proper legal
party. Further, item 4 will stipulate that the
Commonwealth will become the custodian of all the records and
documents currently held by the NOHSC. Similarly, item
7 will save the operation of those national standards and
codes of practice (standards and codes) which have been declared by
the NOHSC and were in force just prior to the abolition of the
Council. Under subitem 7(2), the existing
standards and codes will be deemed to have effect as if they had
been made by the to be established ASCC, whilst sub-item
7(1) will deem a reference to the NOHSC to be reference to
the Commonwealth, and

The operation of current section 63 of the NOHSC Act will be
saved so that even after the repeal of this Act, certain decisions
made by the NOHSC will be able to be reviewed (item
10). Similarly, public consultations currently being
conducted in relation to proposed standards and codes will continue
after the repeal and abolition of the NOHSC (item
12).

At the outset it should be noted that the AWSS Bill will not
create the ASCC. The ASCC will be a creature of the executive,
established by virtue of the executive power enjoyed by the
Government. The ASCC will have all the functions and powers which
the government chooses for the body and confers upon it by written
instruments.

Unlike most of the functions and powers of the NOHSC, none of
the functions and powers of the ASCC will be statutory, except for
the power to declare national standards and codes of practice
(standards and codes) relating to OHS matters. Under
proposed new clause 4, the ASCC as established by
the government will have the function to declare such standards and
codes and under proposed new clause 5, the ASCC
will have all the powers necessary to make such declarations.

The proposed powers and functions of the ASCC will be limited.
Under proposed new subclause 4(3), the functions
may only be performed to the extent that they are supported by a
head of power contained in the Constitution. The proposed
legislation refers expressly to two of the economic powers
conferred upon the Australian legislature under section 51 of the
Constitution, that is the trade and commerce power (section 51(i))
and the corporations power (section 51(xx)).

The declaration of a standard or code must be made by written
instrument and the ASCC must publish certain items of the standard
or code, including information on how interested persons may obtain
a copy of the document (proposed new subclauses
6(1) and (4)).

Before declaring a standard or code, the ASCC will be required
under proposed new clause 7 to follow a
consultation process before declaring the standard or code.
Proposed new subclause 7(1) further stipulates
that the ASCC will have to take certain steps to conduct this
consultation process which will be contained in regulations made
under the proposed legislation. Proposed new subclause
7(2) will oblige the ASCC to afford due consideration to
any representation made in relation to the standard and code. This
subsection will also provide a discretion to alter the standard or
code to be declared on the basis of this representation. The
discretion may be exercised if the ASCC thinks it fit to act upon
the representation.

Commentary

When passed, the package of proposed legislation will
achieve:

the abolition of the NOHSC

the transfer of the assets, liabilities or any outstanding
projects to the ASCC (and hence the Commonwealth executive),
and

the conferral of one statutory function, and related powers, on
the ASCC, namely the function of declaring standards and codes.

The proposed abolition of the NOHSC has been criticised. The
criticism focuses on the fact the NOHSC s replacement, the ASCC,
will not have the same legislative basis. Rather, the ASCC will be
set up administratively as a creature of the executive. This could
be an advantage as it can provide greater flexibility: the
Government could add functions and powers more quickly and with
less bureaucracy. On the other hand, any changes to the ASCC powers
and functions, apart from those proposed in the AWSS Bill, will be
made by the government and are not subject to the parliamentary
scrutiny processes.

Further, it appears that the ASCC will continue to operate as a
so called tripartite body advising on OHS issues. In a recent media
release, the ACCI has emphasised the importance and their support
for the proposed Australian Safety and Compensation Council because
it is tripartite in nature (24) Less clear, however, is
what role employee representatives such as unions will be able to
play in this body. Leading OHS experts have recently argued that,
on the basis of national and international research, there is a
strong case for union participation.(25)

Considering the flexible administrative nature of the ASCC, it
does not follow that unions will be ousted from participation.
However, it must be noted that the definition of Australian
Safety and Compensation Council in proposed new section 3 of
the AWSS Bill could suggest that in the future, the new advisory
body will be comprised of governments, employers and employees ,
implying operation of the ASCC without the participation of unions.
In addition, the decision to reduce the involvement of employee
representatives in OHS matters would sit squarely with the
government s proposed legislation requiring administrative approval
to obtain representation in OHS negotiations with
employers.(26)

Finally, the AWSS Bill will provide the new advisory body with
the function and related powers of declaring standards and codes.
The actual scope of the functions and powers proposed to be
conferred upon the ASCC will depend upon the interpretation of the
constitutional heads of power upon which the creation of this body
is based. Sections 51(i) and (xx) of the Constitution are part of
the constitutional regime dealing broadly with trade and commerce.
The sections overlap to a certain extent in their application. The
constitutional basis upon which the ASCC is supported will depend
on a range of factors, including the nature and effects of each
individual function and power and the characterisation of the heads
of power through the High Court.

The Factory and Shop Acts have been, together with Public Health
Legislation, an integral part of early workplace legislation.
Measures included in these Acts included protection of minors and
the regulation of working time. Encyclopedia Britannica, Labour
Legislation, Volume V16, Page 27, 1911, available at: http://encyclopedia.jrank.org/KRO_LAP/LABOUR_LEGISLATION.html,
accessed 23 August 2005.

Report of the Committee on Safety and Health at Work
1970-1972, HMSO, London, 1972.

The Hon Ralph Willis, Establishment of National Occupational
Health and Safety Commission Ministerial Statement, House of
Representatives, Hansard, 11 October 1984.

Dr Howard Gwynne, Moving To Full Cost Recovery: Improving
The Effectiveness Of NICNAS, Report for the Assistant Minister
for Industrial Relations, May 1995. There was also an Access
Economics report on NICNAS at this time

According to workplace.gov.au, the Workplace Relations Ministers
Council (WRMC) is a council of federal, State and Territory
Ministers responsible for workplace relations matters in their
respective jurisdictions. The New Zealand Minister is invited to
attend WRMC as an observer. The Council usually meets twice a year,
around May and November. (The Council was formerly known as the
Labour Ministers Council.) , available at:
http://www.workplace.gov.au/workplace/Category/PolicyReviews/WorkplaceRelationsMinistersCouncil.htm,
accessed 23 August 2005.

The Hon Tony Abbott reported on this meeting in Ministers report
on OHS and workers compensation , Press Release, 11
September 2002.

Steve O Neill and Thomas John
30 August 2005
Bills Digest Service
Information and Research Services

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